What is 'Reasonable' for Police?

James J. Kilpatrick
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Posted: Jan 10, 2006 11:21 AM

Of the making of Fourth Amendment cases, to paraphrase the Preacher, there shall be no end. In support of that truism, consider the case of Dr. Michael Baldwin of Loomis, Calif. He is suing the county cops for abusing their powers. Four months ago he won a round in the 9th Circuit. Now the cops have asked the Supreme Court to hear their appeal.

The case began in July 1998, when the sheriff of Placer County received a tip that Baldwin, a dentist, might be growing marijuana in his home. The town of Loomis (pop. 6,312) is maybe 20 miles northeast of Sacramento. The mill wheels of the law began their slow rotation.

On Sept. 16, a sheriff's posse led by deputy Jeffrey Potter searched the outside garbage at the dentist's home. Regrettably, Potter then swore that they had found "marijuana leaves and stems recently cut from a mature marijuana plant." Moreover, "the marijuana was fresh green and still moist." This was not so. (The posse had found only .08 grams of dried and partly burned marijuana leaves and stems.)

Other items in the trash aroused the deputies' legitimate suspicions. A week later they obtained a warrant. In the early dawn, to quote Dr. Baldwin's subsequent deposition, five officers burst "paramilitary style" into his home. Officer Mark Reed pointed a gun at the doctor and ordered him to lie down. Reed "then pushed his gun at the rear of (Baldwin's) head."

Baldwin's then-wife, Georgia Chacko, was awakened by the noise. She was clothed only in a T-shirt and cotton briefs. She opened her bedroom door. A man poked his fingers sharply into her throat and ordered her to get on the floor. The intruder pointed a gun at her and held it briefly against her head. Then, according to her deposition, the unidentified gunman kneed her in the small of her back and handcuffed her. The gunman was Potter.

To shorten the story: The deputies seized 147 marijuana plants. Baldwin's subsequent trial for possession ended limply with the jury hung 7-2 for conviction. Charges against him are not likely to be revived. In 2001 the case devolved into a civil suit by the dentist and Ms. Chacko against Placer County and the implicated officers. Last April a panel of the 9th U.S. Circuit ruled firmly against the cops. They had violated the couple's civil rights by relying upon a false affidavit. Their claim to qualified immunity "was rightly denied." From that order the county and the officers seek Supreme Court review.

In the 9th Circuit, Judge John T. Noonan treated the county's case roughly: Baldwin was a practicing dentist. Nothing in the record indicates that the officers had reason to believe he would resist or flee. The officers had stated no belief that the plaintiffs would be armed. A reasonable officer should have known that Potter's treatment of Baldwin's wife was excessive. The malfeasant officer had "concocted a story and fed it to a magistrate."

If the Supreme Court takes the county's appeal, we will hear a good deal about a relevant incident in 1994 in San Francisco. The historic Presidio army base was being converted from a hospital to a municipal park. The hospital somehow was identified with medical experiments on animals. Vice President Al Gore was the ceremonial speaker. Elliot Katz, president of In Defense of Animals, attempted to display a large banner in protest of vivisection. The MPs hauled him off. He sued Officer Donald Saucier and others for police brutality and won on a procedural motion.

The high court voted 8-1 to reverse. Gore's presence created a significant exigency. Katz had not been seriously injured, if indeed he had been injured at all. More to the point: "The question is what the officer reasonably understood his powers to be, when he acted, under clearly established standards." Saucier had substantial grounds for believing that he had justification under the law for acting as he did.

Justice Anthony Kennedy had a few caveats. The excessiveness of an officer's conduct must be judged by objective standards of reasonableness. The border between excessive and acceptable force is "sometimes hazy." It is sometimes difficult for an officer, in the heat of a moment, to determine "how the doctrine of excessive force applies to a factual situation." Police should be granted immunity for "reasonable mistakes."

On that early morning in California, did the cops act reasonably? Doubtful, I would say, highly doubtful.